MVA v. Mansky: Minnesota's Political Apparel Ban Is Facially Overbroad Without Advancing Government Interests

RNLA member Ken Klukowski wrote a piece for last month's SCOTUSblog symposium on Minnesota Voters Alliance v. Mansky.  Mr. Klukowski analyzes how the Supreme Court will likely apply the controlling precedent, Burson v. Freeman (1992), which did not have a majority opinion, in light of current First Amendment doctrine and subsequent decisions regarding evidentiary burdens when applying strict scrutiny.  

He also discusses the relevant First Amendment law, under which Minnesota's ban on all political apparel at the polls is clearly overbroad: 

Minnesota’s law bans all political speech in whatever form, including all passive speech. . . . Here, in 2010 a Minnesota voter wore a Gadsden flag T-shirt (a picture of a rattlesnake with the phrase, “Don’t Tread on Me”), a symbol associated with the Tea Party, and a lapel button that said, “Please I.D. Me.” That voter, Andrew Cilek, was initially denied the opportunity to cast a ballot. He was later allowed to do so, but only after officials recorded his identity for possible prosecution. 

Yet neither of those clothing items should be a problem. Regarding the T-shirt, the Tea Party is a governing-philosophy political movement, not an actual political party that runs candidates. There was no “Tea Party candidate” on the ballot alongside Democrats and Republicans. Regarding “Please I.D. Me,” Minnesota has no voter-ID law, nor was that issue on the ballot in 2010, so the button had nothing to do with the 2010 election. . . . 

Under the overbreadth doctrine, laws facially violate the First Amendment if they permissibly burden some types of speech, but also go beyond that to restrict substantially more speech than necessary to achieve the permissible outcome. Such laws have a “chilling effect” on constitutionally protected speech. The courts frequently invalidate such laws, sending the issue back to the legislature to formulate a narrower law that achieves the permissible goal without scaring people away from saying things that the Constitution protects. . . . In this case, the discussion revolves around why Minnesota must go beyond blocking vote solicitations and campaigning to also ban T-shirts, baseball caps and other types of passive communication unrelated to candidates and issues on the current ballot in order to stop fraud and intimidation. In today’s environment, people can regard all sorts of innocuous messages as conveying some kind of political content.

But as important as the overbreadth analysis is (and the law is certainly far from narrowly tailored), the government has simply failed to prove that its governmental interests in preventing fraud and intimidation are advanced by the prohibition:

The question is not whether the Minnesota statute violates the First Amendment as an overbroad restriction on speech. Rather, the question becomes whether Minnesota has proven that its statute does not violate the Constitution — that is, proven that banning NRA and Tea Party shirts and hats is necessary to prevent fraud and intimidation. The government failed to carry that burden.

The Supreme Court will hear oral arguments in this important case next Wednesday, and we look forward to a decision this term protecting the right of voters not to be turned away from the polls for their passive speech.